Some time ago, we posted an anecdote about the family travel mishaps of Judge Marsha Berzon, of the U.S. Court of Appeals for the Ninth Circuit.
Many ATL readers enjoyed the story. But Judge Berzon’s colleague, Judge Alex Kozinski — one of the federal judiciary’s most brilliant thinkers and talented writers — was less pleased. He sent us an open letter criticizing the story and our decision to publish it.
We posted Judge Kozinski’s letter here, and we promised a more detailed response.
We intended to publish a response much earlier. But having to respond to a benchslapping at the hands of a brilliant federal judge tends to induce “writer’s block.” Who’d have thunk it?
Anyway, we finally got over our writer’s block. Our response appears after the jump.

[Ed. note: Apologies for any typos, poor formatting, the hasty character of this post, etc. We have to step away for lunch right now, and we haven’t proofread this. But we’d like to put it up before leaving because it’s a lengthy, substantive post. We will update, improve, proofread, and fix minor mistakes after we get back from lunch.]
Before we move into the substance of Judge Kozinski’s letter, we have two overarching points to make:

1. We regret the unfortunate timing of our original post. As we previously wrote, “Obviously we had no idea of the passing of Judge Berzon’s brother at the time we published our post.”

2. We apologize insofar as we caused offense, which was not our intention. We saw the story as amusing and harmless — a touch snarky, of course, but nothing out of the ordinary for ATL. We did not intend for it to be hurtful.

We now move into the meat of Judge Kozinski’s missive. Judge Kozinski’s letter appears in block quotes; our responses follow.

Dear David:

I’ve been a long-time fan of your efforts to demystify and humanize the federal judiciary. Which is why I was so shocked and disappointed by your recent posting about my colleague, Judge Berzon.

The part dealing with the incident on the airplane is a vicious and wholly gratuitous personal attack on Judge Berzon and her family. Assuming it bears some nodding resemblance to the truth, which I seriously doubt, it is so laden with pejoratives and half-witticisms that it seems designed only to wound and deride, rather than to enlighten. Federal judges may be public figures who must endure whatever criticism is leveled at us for our work product, but what possible justification is there for holding up members of our families for public ridicule?

Two thoughts. First, we should explain how this story got crafted. It was related to us orally by our source who was on the plane; we subsequently wrote it up. You can think of it as one of those “as told to” stories that you see in various publications (e.g., the last-page essay in the New York Times magazine).
In writing the story up, we took some stylistic liberties and poetic license. So the story should be read with the knowledge that snark was added for stylistic effect. We should also add the caveat that we did not circle back to our original tipster after writing it up — so some inaccuracies may have been introduced when we wrote it up.
For example, we included a reference to “Starbucks.” But as a tipster pointed out to us:

Something struck me as off about the Berzon story, with her flying out of SFO to the East Coast and her daughter spilling coffee on a hapless passenger’s seat.

According to the person who submitted this gem of a story, the spillage involved a “scalding hot” “venti latte” from “Starbucks.” One problem. Starbucks is not served in San Francisco International Airport. Peet’s Coffee is the only one served at SFO. Perhaps the story-writer was mistaken about the airport. Starbucks is in San Jose Airport (SJC), so, maybe the flight was out of there.

Judge Kozinski also writes: “[W]hat possible justification is there for holding up members of our families for public ridicule?”
We didn’t see the story this way. We intended for it be a cute, “federal judges are just like us,” “oh those crazy kids” kind of story. We wanted it to show that federal judges, just like “regular folks” can have trying experiences with family travel. And we think some commenters saw what we were trying to get at:
“Weeellll… it kind of did show her to be human.”
“I didn’t think Judge Berzon came off that poorly in the initial post – disorganized, sure, but I think inability to master Microsoft e-mail software is kind of charming, and who hasn’t been the passenger from Hell on one flight or another?”
But the story apparently didn’t come out the way we intended to all readers…
Back to Judge Kozinski’s letter:

Equally disappointing, but far more serious, is the second part of the posting, which refers to Judge Berzon’s work habits in highly pejorative terms — relying largely on comments “[f]rom a former Ninth Circuit clerk.” You are aware, of course, of what I think about former law clerks who speak publicly about matters they learned of during their clerkships. See Alex Kozinski, Conduct Unbecoming, 108 Yale L.J. 835 (1999) (reviewing Edward P. Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998)).

One problem with such gossip is that it’s generally very hard to refute. In this case, however, I can tell you that your source must have been smoking a controlled substance during working hours because nothing like what he (or should I say it?) reports bears any relation to objective reality.

Now here we have a genuine point of disagreement with Judge Kozinski. We respectfully submit that this type of gossip is completely different from what Lazarus did in Closed Chambers, in which he revealed secrets concerning case deliberations, in-chambers discussions, and the process of drafting opinions.
The incident in question took place in a public setting. And the clerk gossip mentioned in the post, which we’ll discuss in more detail later, is non-substantive in nature. It’s the type of stuff that former (or even current) clerks will mention when asked in casual conversation about their jobs or the clerking experience.
We now return to Judge Kozinski’s letter:

The allegations, sprinkled throughout the posting — that Judge Berzon is “a Holy Terror to her hapless law clerks,” that “her chambers is a total gong show,” that she “cannot run an office to save her life” — are made up out of whole cloth. One need only examine the quality and quantity of Judge Berzon’s work product since she’s been a member of this court to realize that she runs an effective and efficient law office that consistently produces an impressive body of work.

Having tried (unsuccessfully so far) to persuade our court on several occasions to take some of Judge Berzon’s opinions en banc, I can vouch for the quality of the work that comes out of the Berzon chambers.

We have a bunch of responses here:
1. We’d like to clarify that we do NOT question “the quality and quantity of Judge Berzon’s work product.” To the contrary, we have heaped praise upon Judge Berzon for her fearsome intellect, in the pages of both ATL and Underneath Their Robes.
2. The comments quoted by Judge Kozinski were aimed not at Judge Berzon’s final work product, but at the process by which it is produced (sausage vs. sausage factory).
According to our sources, Judge Berzon is a great legal mind, but administratively challenged. If these claims are true — and we realize there is disagreement on this score (more infra) — Judge Berzon would not be the first federal judge in history to be a less-then-stellar administrator. Some of the most brilliant minds in the legal profession are not talented at the mind-numbing business of office administration.
We think this commenter got it right:
“I would hardly construe the last posting as an attack on Judge Berzon’s work product. Quite to the contrary. The story [about her liberal use of the Microsoft Outlook “Recall” feature] is interesting precisely because Judge Berzon does produce such high quality stuff (which the posting made clear).”
3. We LOVE the thought of the mighty Judge Berzon, whom we have nicknamed “She Who Must Not Be Named,” vanquishing Judge Kozinsk in en banc battle.
4. Judge Kozinski’s mentioning that he has tried but not never succeeded in taking Judge Berzon opinions en banc may ironically come closer to revealing the substance of confidential court deliberations than anything in our silly post.
More from Judge Kozinski:

My personal observations, and discussions with her staff over the years, confirm this view. Her law clerks — at least those I’ve talked to, and there have been many — revere her, and count themselves lucky to have the privilege of learning from her. Scurrilous suggestions to the contrary are quite simply unfounded.

In fairness, we also know at least one Berzon clerk who adores her. But accorrding to what we’ve heard from many former Ninth Circuit clerks, a fair number of Berzon clerks — certainly higher-than-average for a circuit court judge — have had challenging experiences in her chambers.
Is this gossipy and unsubstantiated? Sure. But it is no different from what takes place every year in practically every law school in America, around clerkship application season, when students talk and gossip about what various judges are supposed to be like to clerk for.
As to Judge Kozinski’s citation to positive comments from clerks to Judge Berzon, we welcome these contributions, which provide a more balanced portrait. But we also must agree with this commenter:
“I ask you — how likely is it that any law clerk would say anything less than 100% flattering about their judge, let alone, to the judge’s colleague. Not very.”
Judge Kozinski concludes:

It is very easy — probably too easy — to ruin a fine reputation, and cause personal suffering, by posting unfounded allegations from anonymous sources as if they were the Gospel Truth. I hope that you will correct the record by posting my letter — giving it as prominent a place as the original posting.

Alex Kozinski

As noted, we did post Judge Kozinski’s letter, in “as prominent a place as the original posting.” And we have re-posted it in this post, in the course of responding to it.
Judge Kozinski makes many excellent points, and we were happy to receive his letter (even though we got benchslapped). Our modus operandi around here is to provide a forum for many different viewpoints, and to correct errors quickly and comprehensively. Even if something may not necessarily be “erroneous,” but subject to debate, we are happy to air both sides of the debate.
So if you see something you disagree with in ATL or believe to be inaccurate, please append a comment to the post, or send us an email. We are big believers in the marketplace of ideas, and fighting free speech with free spech.
In the words of this commenter:

“I think to the degree that The Easy Rider’s letter provides an opposing view to the missive published yesterday, it is a welcome voice in the marketplace of ideas and evidence that this system of finding the truth works.”

“To the degree, however, that his letter argues against even posting such missives as the one yesterday, I think it borders on a call for supression of free speech, assuming that the missive yesterday wasn’t completely false and malicious. But there’s the catch – how do we even prove truth an malice without these alternately-opposed viewpoints?”

So if you feel you’ve been wronged in these pages, don’t stew about it; contact us. As you can see from our recent Mayer Brown post, you will get better coverage from us than if you ignore or stonewall us.
We thank Judge Kozinski for his excellent and thoughtful letter. And we thank all of our readers who take the time to provide us with tips, corrections, and other feedback (at least of the civil and mature kind).

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